Rose v. Oneida Coal
Annotate this Case
September 1995 Term
_________
No. 22606
_________
WALTER J. ROSE AND RUTH O. ROSE,
Plaintiffs Below, Appellants
V.
ONEIDA COAL COMPANY, INC.,
A WEST VIRGINIA CORPORATION,
Defendant Below, Appellee
_______________________________________________________________
APPEAL FROM THE CIRCUIT COURT OF BRAXTON COUNTY
HONORABLE DANNY O. CLINE, JUDGE
CIVIL ACTION NO. 89-C-225
AFFIRMED, IN PART; REVERSED, IN PART;
AND REMANDED
_______________________________________________________________
Submitted: September 26, 1995
Filed: December 8, 1995
Robert J. Shostak W. T. Weber, Jr.
Athens, Ohio W. T. Weber III
Patrick E. McFarland Weber & Weber
Hague & McFarland Weston, West Virginia
Parkersburg, West Virginia Attorneys for Appellee
Attorneys for Appellants
RETIRED JUSTICE MILLER, sitting by temporary assignment, delivered the Opinion of
the Court.
JUSTICE ALBRIGHT did not participate.
SYLLABUS BY THE COURT
1. "'A circuit court's entry of summary judgment is reviewed de novo.' Syl.
pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 1, Jones v.
Wesbanco Bank Parkersburg, ___ W. Va. ___, 460 S.E.2d 627 (1995).
2. "'"'A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)."
Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).'
Syl. pt. 2, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 2, Jones v.
Wesbanco Bank Parkersburg, ___ W. Va. ___, 460 S.E.2d 627 (1995).
3. Neither the West Virginia Surface Coal Mining and Reclamation Act,
W. Va. Code, 22A-3-24(b) (1985) [now W. Va. Code, 22-3-24 (1994)], nor its federal
counterpart in 30 U.S.C. § 1307 (1977) of the Surface Mining Control and Reclamation Act
relating to the replacement of surface water, is applicable to the operation of an underground
coal mine.
4. Pursuant to the West Virginia Surface Coal Mining and Reclamation
Act, W. Va. Code, 22A-3-14 (1985) [now W. Va. Code, 22-3-14 (1994)], and 30 U.S.C. § 1266 (1977) of the federal Surface Mining Control and Reclamation Act and their
accompanying regulations, the operator of an underground mine is required to correct any
material damage resulting from subsidence caused to surface lands, to the extent
technologically and economically feasible by restoring the land to a condition capable of
maintaining the value and reasonably foreseeable uses which it was capable of supporting
before subsidence.
Miller, Justice:
The plaintiffs below and appellants herein, Walter J. Rose and Ruth O. Rose,
own the surface of some land located in Braxton County and assert that the Circuit Court of
Braxton County erred in granting a summary judgment against them in their civil action for
damages against Oneida Coal Company, Inc. (Oneida), the defendant below and appellee
herein. Mr. and Mrs. Rose claim Oneida, through its underground coal mining, destroyed
their water supply as well as caused subsidence to the surface of their property. This appeal
is a sequel to Rose v. Oneida Coal Company, Inc., 180 W. Va. 182, 375 S.E.2d 814 (1988)
(Rose I), where we held that a waiver of the right of subjacent support contained in a prior
severance deed foreclosed the common law right to obtain damages. We did, however,
indicate that recent legislation involving mining regulations might modify the common law
rule.See footnote 1
The case was remanded and the Roses amended their complaint to allege a
violation of the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) and,
in particular, W. Va. Code, 22A-3-24 (1985), which deals with the protection of water
rights.See footnote 2 The procedural basis for their suit was under W. Va. Code, 22A-3-25(f) (1985),
which allows damages for violation of the Act.See footnote 3
As to the plaintiffs' claim of surface damage from subsidence, they assert that
surface damage is regulated under W. Va. Code, 22A-3-14(b)(1) (1985).See footnote 4 Under W. Va.
Code, 22A-3-14(a) (1985), the Commissioner must promulgate separate regulations directed
toward the surface effects of underground coal mining operations, which regulations may not
conflict with or supersede applicable federal laws or regulations.See footnote 5 Moreover, in addition to these statutes, the plaintiffs contend surface damage from subsidence through underground
mining is controlled by the federal Surface Mining Control and Reclamation Act under 30
U.S.C. § 1266 (1977)See footnote 6 and its accompanying regulation found in 30 C.F.R. § 817.121.See footnote 7
From a factual standpoint, there appears to be no significant dispute on the
material facts. Oneida conducted underground mining operations beneath the plaintiffs'
property. In the 1915 deed which severed the mineral estate from the surface, there was
general language waiving any liability for damage to the land or overlying strata or surface.See footnote 8
There is no dispute that Oneida's mining resulted in damage to the surface, as well as loss
of water from springs and the house well.
On April 4, 1994, the trial court ruled that the loss of surface water was not
protected under W. Va. Code, 22A-3-24(b), because it relates only to loss because of
"surface-mining operations."See footnote 9 With regard to the plaintiffs' claim that damage to the surface
was protected under W. Va. Code, 22A-3-14(b)(1), the court held that surface protection was
not required by this statute nor the applicable federal statute and state and federal
regulations.
I.
Our standard of review for a circuit court's granting of summary judgment is
set out in Syllabus Points 1 and 2 of Jones v. Wesbanco Bank Parkersburg, ___ W. Va. ___,
460 S.E.2d 627 (1995):
"1. 'A circuit court's entry of summary judgment
is reviewed de novo.' Syl. pt. 1, Painter v. Peavy, 192 W. Va.
189, 451 S.E.2d 755 (1994).
"2. '"'A motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact to be tried
and inquiry concerning the facts is not desirable to clarify the
application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co.
v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187
W. Va. 706, 421 S.E.2d 247 (1992).' Syl. pt. 2, Painter v. Peavy, 192
W. Va. 189, 451 S.E.2d 755 (1994)."
Moreover, when we consider matters involving an interpretation of a statute
or regulation made by a circuit court, we also apply a de novo standard of review as stated
in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
II.
Initially, we determine whether the loss of surface water through underground
mining is protected under the WVSCMRA. In embarking on such an inquiry, we are mindful
that the Federal Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. § 1201,
et seq., also applies. We recognized in Syllabus Point 1 of Russell v. Island Creek Coal Co.,
182 W. Va. 506, 389 S.E.2d 194 (1989), that where there is a difference between our state
provisions and the federal act, we must interpret our act to be consistent with the federal act:
"'When a provision of the West Virginia Surface
Coal Mining and Reclamation Act, W. Va. Code, 22A-3-1 et
seq., is inconsistent with federal requirements in the Surface
Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq.,
the state act must be read in a way consistent with the federal
act.' Syl. pt. 1, Canestraro v. Faerber, 179 W. Va. 793, 374 S.E.2d 319 (1988)."
See also Cogar v. Sommerville, 180 W. Va. 714, 379 S.E.2d 764 (1989).
In Canestraro, 179 W. Va. at 795, 374 S.E.2d at 319, we made a detailed
analysis of various provisions of the SMCRA that dealt with state programs regulating
surface coal mining and came to these conclusions:
"Clearly, Congress intended that state provisions
be no less stringent or effective than the federal provisions.
* * *
. . . "[W]hen there is a conflict between the federal
and state provisions, the less restrictive state provision must
yield to the more stringent federal provision[.]"
This quoted language clearly expresses the concept of the primacy of federal law governing
the operations of surface coal mining over less stringent state law and guides us where there
is any conflict.
The plaintiffs appear to concede that at the time the surface water damage
occurred, the federal provision which is in 30 U.S.C. § 1307 (1977) of the SMCRASee footnote 10 did not
apply to underground mining as determined in National Wildlife Federation v. Hodel, 839 F.2d 694, 754 (D.C. Cir. 1988), where the court held that this section applied only to surface
mines and not to underground mines:
"We conclude from the text as well as the
legislative history of the water replacement provision, and from
other provisions distinguishing between surface and
underground mining, that Congress explicitly recognized the
difference between surface and underground mines; that it
deliberately chose to apply some environmental safeguards to
one and not the other; and that water replacement is a provision
it explicitly required only of surface mine operators."
The plaintiffs claim that because W. Va. Code, 22A-3-24, is not worded in
precisely the same language as the federal act, we should find that it does protect surface
water from underground mining.See footnote 11 The plaintiffs seize on the initial phrase in subsection (b)
that "[a]ny operator shall replace the water supply of an owner of interest in real property"
to claim this covers both surface and underground mining. However, this approach ignores
the remaining portion of the subsection that speaks to the water supply being "affected by
contamination, diminution or interruption proximately caused by such surface-mining
operations[.]"
It must be remembered that the WVSCMRA, as its title indicates, is designed
primarily to regulate the operation of surface mines. The key language of this section is that
the damage to the water supply "caused by such mining operation." This language is consistent with the federal act and we give deference to the federal court's holding in Hodel
that deep mining operations are excluded. Moreover, our customary approach in interpreting
a statute is to give effect to each of its parts as we explained in Syllabus Point 2 of State ex
rel. Holmes v. Gainer, 191 W. Va. 686, 447 S.E.2d 887 (1994):
"'"'In ascertaining legislative intent, effect must be
given to each part of the statute and the statute as a whole so as
to accomplish the general purpose of the legislation.' Syl. Pt. 2,
Smith v. State Workmen's Compensation Comm'r, 159 W. Va.
108, 219 S.E.2d 361 (1975)." Syl. Pt. 3, State ex rel. Fetters v.
Hott, 173 W. Va. 502, 318 S.E.2d 446 (1984).' Syllabus Point
3, Jeffrey v. Jeffrey, 188 W. Va. 476, 425 S.E.2d 152 (1992)."
It should be noted that this case differs from Russell v. Island Creek Coal Co.,
supra, where we dealt with a surface mine operation that destroyed the landowner's surface
water supply. Clearly, W. Va. Code, 22A-3-24(b), applied to the surface mining activity.
The only issue in Russell, supra, was the exception in that section which allowed the surface
owner to waive this statutory right to surface water protection. In 1972, the Russells
conveyed to Island Creek the right to surface mine on a sixty-acre parcel. The deed
contained language waiving its liability for damages arising out of the mining, including
damage to springs or water courses on the surface.
We held this was a sufficiently precise waiver to exclude their ability to seek
damages against Island Creek for loss of surface water. We emphasized in Russell, supra, that W. Va. Code, 22A-3-24(b), expressly recognized this statutory protection could be
"waived by said owner."See footnote 12
Here, we are dealing with an underground coal mine whose operations caused
loss to surface water. As we pointed out, W. Va. Code, 22A-3-24(b), as well as its federal
counterpart, does not apply to underground coal mining but only to surface mining.
Consequently, we conclude that neither W. Va. Code, 22A-3-24(b) [now W.
Va. Code, 22-3-24 (1994)], of the WVSCMRA nor its federal counterpart in 30 U.S.C.
§ 1307 of the SMCRA relating to the replacement of surface water, is applicable to the
operation of an underground coal mine.See footnote 13
III.
When we turn to the question of whether the damage to the land itself which
occurred from Oneida's underground mining can be compensated, we find that it can be.
Both federal and state regulations require underground operators to adopt all
measures technologically and economically feasible to prevent subsidence causing material
damage or reducing the value and reasonably foreseeable use of surface lands. This general requirement is contained in 30 U.S.C. § 1266 (1977), of SMCRASee footnote 14 and its applicable
regulation is found in 30 C.F.R. § 817.121(c)(1) (1987).See footnote 15
A discrepancy existed between the text of 30 U.S.C. § 1266, which required
an underground mine operator to adopt measures to prevent surface subsidence, and the
regulation in Section 817.121(c)(1) that the operator shall "[c]orrect any material damage
resulting from subsidence caused to surface lands, to the extent technologically and
economically feasible" by restoring the land resulting from subsidence. The claim was made
in Hodel, supra, that the regulatory duty to correct any material damage exceeded the
permissible scope of the statutory language. The Hodel court, after an extended discussion
of the question, came to this conclusion:
"For the Secretary to construe that language as authorizing a
regulation requiring the restoration of subsided land is certainly
not inconsistent with the section's language: 'maintaining the
value' of land may well require restoring it after it has been
damaged." 839 F.2d at 741.
Our regulation, 38 C.S.R. 2 § 16.2(a),See footnote 16 is derived from W. Va. Code, 22A-3-
14(a), which directs the Commissioner to promulgate "regulations directed toward the
surface effects of underground coal mining operations[.]" The regulations must embody the
requirements in subsection (b) of this section.See footnote 17 Subsection (a) provides that the "regulations
may not conflict with or supersede any provision of the federal or state coal mine health and
safety laws[.]"See footnote 18
While there may be some minor variations in the language of W. Va. Code,
22A-3-14, and the federal counterpart and their respective regulations, we find nothing that
allows us to arrive at a different result from that reached in Hodel, supra. Certainly, under
the rule of primacy recognized in Canestraro, supra, and its progeny, we are required to give
deference to the federal law.
The defendant appears to recognize this law as it states in its initial appellate
brief: "The federal and state regulations require underground operators to 'adopt all measures
technologically and economically feasible to prevent subsidence causing material damage
or reducing the value or reasonably foreseeable use of surface lands.' 30 C.F.R.
§ 817.121(c)(1) (1987) 38 C.S.R. 2 § 16.2(a) (1989)." (Emphasis in original). What is
missing from this acknowledgement is the provision in Section 817.121(c)(1) that requires
restoration.
The defendant contends that the right to assert subsidence damage to the
surface can be waived by the surface owner, citing Rose I where we held that under the
common law right to surface support a landowner could waive this right by appropriate
language. Here, however, we deal with a statutory right to restore surface lands damaged by
subsidence from underground mining. There is nothing in W. Va. Code, 22A-3-14, nor its
federal counterpart in 30 U.S.C. § 1266 that allows a landowner to waive this statutory right
as was permitted in 30 U.S.C. § 1307 and W. Va. Code, 22A-3-24(b), relating to the loss of
surface water through surface mining. As we earlier pointed out, Russell, supra, recognized
that a landowner could waive his right to protection of his surface water sources from surface
mining but this was because both the state and federal statutes specifically allowed such a
waiver right. W. Va. Code, 22A-3-24(b); 30 U.S.C. § 1307.See footnote 19
Consequently, we conclude that pursuant to W. Va. Code, 22A-3-14 [now W.
Va. Code, 22-3-14 (1994)], and 30 U.S.C. § 1266 of the federal SMCRA and their
accompanying regulations, the operator of an underground mine is required to correct any
material damage resulting from subsidence caused to surface lands, to the extent
technologically and economically feasible by restoring the land to a condition capable of
maintaining the value and reasonably foreseeable uses which it was capable of supporting
before subsidence.See footnote 20
For the foregoing reasons, the judgment of the Circuit Court of Braxton County
is affirmed, in part, reversed, in part, and remanded for further proceedings consistent with
this opinion.
Affirmed, in part,
reversed, in part,
and remanded.
Footnote: 1
The Syllabus in Rose I states:
"Under the West Virginia common law of
property, the well recognized and firmly established rule is that
when a landowner has conveyed the minerals underlying the
surface of his land, he retains the right to the support of the
surface in its natural state, but the owner of land may release or
waive his property right of subjacent support by the use of
language that clearly shows that he intends to do so; however,
this law has been modified to some extent by the enactment of
the West Virginia Surface Coal Mining and Reclamation Act,
W. Va. Code, 22A-3-1 [1985], et seq. and the extent of such
modification will be ruled upon when properly presented." Footnote: 2
W. Va. Code, 22A-3-24, states:
"(a) Nothing in this article shall be construed as
affecting in any way the rights of any person to enforce or
protect, under applicable law, his interest in water resources
affected by a surface-mining operation.
"(b) Any operator shall replace the water supply
of an owner of interest in real property who obtains all or part
of his supply of water for domestic, agricultural, industrial or
other legitimate use from an underground or surface source
where such supply has been affected by contamination,
diminution or interruption proximately caused by such surface-
mining operation, unless waived by said owner."
This provision is now found in W. Va. Code, 22-3-24 (1994).Footnote: 3
W. Va. Code, 22A-3-25(f), states:
"Any person or property who is injured in his
person through the violation by any operator of any rule,
regulation, order or permit issued pursuant to this article may
bring an action for damages, including reasonable attorney and
expert witness fees, in any court of competent jurisdiction.
Nothing in this subsection shall affect the rights established by
or limits imposed under state worker's compensation laws."
This provision is now found in W. Va. Code, 22-3-25(f) (1994).Footnote: 4
W. Va. Code, 22A-3-14(b), states, in pertinent part:
"Each permit issued by the commissioner pursuant
to this article and relating to underground coal mining shall
require the operation as minimum to:
"(1) Adopt measures consistent with known
technology in order to prevent subsidence causing material
damage to the extent technologically and economically feasible,
maximize mine stability and maintain the value and reasonably
foreseeable use of overlying surface lands, except in those
instances where the mining technology used requires planned
subsidence in a predictable and controlled manner: Provided,
That this subsection does not prohibit the standard method of
room and pillar mining[.]"
W. Va. Code, 22-3-14(b) (1994), now contains this language. Footnote: 5
W. Va. Code, 22A-3-14(a), provides:
"The commissioner shall promulgate separate
regulations directed toward the surface effects of underground
coal mining operations, embodying the requirements in
subsection (b) of this section: Provided, That in adopting such
regulations, the commissioner shall consider the distinct
difference between surface coal mines and underground coal
mines in West Virginia. Such regulations may not conflict with
or supersede any provision of the federal or state coal mine
health and safety laws or any regulation issued pursuant
thereto."
This language is now found in W. Va. Code, 22-3-14(a) (1994).Footnote: 6
See note 14, infra, for the text of 30 U.S.C. § 1266. Footnote: 7
See note 15, infra, for the text of 30 C.F.R. § 817.121.Footnote: 8
The pertinent language from the 1915 deed is:
"[T]here is reserved and excepted from this conveyance all the
coal . . . in, upon and underlying the tract hereby conveyed, with
the right to enter upon and under said land to mine and remove
all of said coal under said tract . . . without being liable for any
injury to said land, or to any thing therein or thereon, by reason
of the mining and removal of said coal therefrom, and the coal
from neighboring lands, without being required to provide for
the overlying strata or surface." Footnote: 9
For the text of W. Va. Code, 22A-3-24(b), see note 2, supra. Footnote: 10
30 U.S.C. § 1307(b) states:
"The operator of a surface coal mine shall replace
the water supply of an owner of interest in real property who
obtains all or part of his supply of water for domestic,
agricultural, industrial, or other legitimate use from an
underground or surface source where such supply has been
affected by contamination, diminution, or interruption
proximately resulting from such surface coal mine operation."
Footnote: 11
For the text of W. Va. Code, 22A-3-24, see note 2, supra. Footnote: 12
For the text of W. Va. Code, 22A-3-24(b), see note 2, supra. Footnote: 13
The plaintiffs also claim that our common law as to waiver of surface water
damage by virtue of the waiver agreement in the 1915 severance deed should be reconsidered
as the waiver language was insufficient to cover surface water damage. However, this
common law principle was resolved against the plaintiffs in Rose I. We decline to address
this issue because of res judicata principles, which we explained in Syllabus Point 1 of State
ex rel. Hamrick v. LCS Services, Inc., 186 W. Va. 702, 414 S.E.2d 620 (1992):
"'An adjudication by a court having jurisdiction of
the subject-matter and the parties is final and conclusive, not
only as to the matters actually determined, but as to every other
matter which the parties might have litigated as incident thereto
and coming within the legitimate purview of the subject-matter
of the action. It is not essential that the matter should have been
formally put in issue in a former suit, but it is sufficient that the
status of the suit was such that the parties might have had the
matter disposed of on its merits. An erroneous ruling of the
court will not prevent the matter from being res judicata.' Syl.
pt. 1, Sayre's Adm'r v. Harpold, 33 W. Va. 553, 11 S.E. 16
(1890). (emphasis in original)." Footnote: 14
The applicable language of 30 U.S.C. § 1266 states:
"(b) Each permit issued under any approved State
or Federal program pursuant to this chapter and relating to
underground coal mining shall require the operator to --
"(1) adopt measures consistent with known
technology in order to prevent subsidence causing material
damage to the extent technologically and economically feasible,
maximize mine stability, and maintain the value and reasonably
foreseeable use of such surface lands, except in those instances
where the mining technology used requires planned subsidence
in a predictable and controlled manner: Provided, That nothing
in this subsection shall be construed to prohibit the standard
method of room and pillar mining[.]" Footnote: 15
The applicable language of Section 817.121 states:
"(a) The operator shall either adopt measures
consistent with known technology which prevent subsidence
from causing material damage to the extent technologically and
economically feasible, maximize mine stability, and maintain
the value and reasonably foreseeable use of surface lands; or
adopt mining technology which provides for planned subsidence
in a predictable and controlled manner. Nothing in this part
shall be construed to prohibit the standard method of room-and-
pillar mining.
"(b) The operator shall comply with all provisions
of the approved subsidence control plan prepared pursuant to
§ 784.20 of this chapter.
"(c) The operator shall --
"(1) Correct any material damage resulting from
subsidence caused to surface lands, to the extent technologically
and economically feasible, by restoring the land to a condition
capable of maintaining the value and reasonably foreseeable
uses which it was capable of supporting before subsidence[.]"
Footnote: 16
38 C.S.R. 2 § 16.2(a) states:
"Each person who conducts underground mining
activities shall either adopt measures consistent with known
technology which prevent subsidence from causing material
damage to the extent technologically and economically feasible,
maximize mine stability, and maintain the value and reasonably
foreseeable use of surface lands; or adopt mining technology
which provides for planned subsidence in a predictable and
controlled manner. Nothing in this part shall be construed to
prohibit the standard method of room-and-pillar mining."Footnote: 17
For the text of W. Va. Code, 22A-3-14(b), see note 4, supra. Footnote: 18
The text of W. Va. Code, 22A-3-14(a), is found in note 5, supra. Footnote: 19
In Smerdell v. Consolidated Coal Co., 806 F. Supp. 1278, 1284 (N.D. W. Va.
1992), the court viewed Russell, supra, as recognizing that a "pre-SMCRA waiver may
validly extinguish rights afforded under SMCRA[.]" This statement ignored the key
component in Russell that surface water protection statutes, both federal and state, provide
a waiver right. Such is not the case under the subsidence statutes. W. Va. Code, 22A-3-14;
30 U.S.C. § 1266. This same distinction appears to be overlooked in a note entitled
Subjacent Support: A Right Afforded to Surface Estates Alone?, 97 W. Va. L. Rev. 1111,
1131 (1995). Moreover, the court in Smerdell, recognized "that plaintiffs have not timely
raised the statutory rights provided under SMCRA and WVSCMRA in their civil action."
806 F. Supp. at 1284. Footnote: 20
We note that both under W. Va. Code, 22A-3-25(f), which is set out in note
3, supra, and its federal counterpart in 30 U.S.C. § 1270(f), a "person who is injured in his
. . . property through the violation by any operator of any rule, regulation . . . may bring an
action for damages (including reasonable attorney and expert witness fees)[.]"
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